The General Regime of Fundamental Rights in the Basic Law and in the International Instruments

Every system of constitutional protection of fundamental rights is comprised of at least three dimensions. From general to specific, the three dimensions are the following: the first dimension, although usually not explicit, is translated into the conception of fundamental rights that is in force in a specific legal order; the second dimension is the definition of a general regime to which these fundamental rights are subject; and the third dimension is the enunciation and specific protection of a long catalogue of rights.

The perspective of a dogmatic theory of the fundamental rights will only be mentioned in this study occasionally, since it may contribute in finding the solution for some of the problems. In each and every legal order integrating the acknowledgement and the guarantee of fundamental rights, a material conception concerning the range and general sense of that acknowledgement and guarantee will be in force. To this effect, one could refer to the liberal theory; the theory of the order of values; the institutional theory; the social theory; the functional democratic theory; the socialist theory, and etc. (see, among others, Miranda 2000, p. 48 f; Canotilho 2003, p. 1396 ff; Queiroz 2002, p. 75 ff). However, none of these theories can individually explain each of the concrete systems of fundamental rights, and the adoption of a mixed theory that incorporates all of the aforementioned theories is advisable.

Keywords

Legal Order General Regime International Instrument Liberal Conception Optional Protocol

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Authors and Affiliations

Vitalino Canas

1

1.Law Faculty of Lisbon, Lisbon UniversityLisbonPortugal

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Canas V. (2009) The General Regime of Fundamental Rights in the Basic Law and in the International Instruments. In: Oliveira J.C., Cardinal P. (eds) One Country, Two Systems, Three Legal Orders - Perspectives of Evolution. Springer, Berlin, Heidelberg